a citizen’s journal by Thomas Nephew

The Great Betrayal, judicial activism, and a living Constitution

Posted by Thomas Nephew on October 2nd, 2010

September 17 was Constitution Day, always a good opportunity to reflect on that document and what it means to us.  Unfortunately, I missed that opportunity.  But of course every day is Constitution Day!  So I’ll go ahead and write down a few things I’ve been thinking and reading about lately on that subject and its intersection with another that has been occupying me lately: post Civil War American history.

In a note he published on Facebook, Patrick Bruckart wrote,

…the Bill of Rights was intended to restrain the federal government’s authority and provide citizens a means of redressing grievances against it. The BOR did not originally apply to the states. The Fourth Amendment, for example, was later applied to the states via the Fourteenth Amendment and subsequent court decisions. The next time we are inclined to complain about “judicial activism,” we should ask ourselves whether it would be acceptable for state or local law enforcement officials to search our homes (or property) without having first obtained a warrant based on probable cause. And that’s just one example.
(links added)

Even in colonial times, some states provided their own constitutional guarantees — that is, they acknowledged their own limitations — regulating searches and seizures.  But it was optional — especially with respect to the lower and disenfranchised members of society.

The Fourteenth Amendment
1. All persons born or naturalized
in the United States, and subject to
the jurisdiction thereof, are citizens
of the United States and of the State
wherein they reside. No State shall
make or enforce any law which shall
abridge the privileges or immunities
of citizens of the United States; nor
shall any State deprive any person
of life, liberty, or property, without
due process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws. […]
5. The Congress shall have power
to enforce, by appropriate
legislation, the provisions of this

But the Fourteenth Amendment changed all that.  In particular, the Fourteenth Amendment — in both intent and language — clarified that rights guaranteed under the Constitution were a floor under state law, not merely interesting limitations on a far off federal government.  And both these rights and the promise of equal treatment under the law were guaranteed to everyone born in, naturalized to, or simply under the jurisdiction of the United States of America.

And Congress could see to it.  According to Akhil Reed Amar’s indispensable “America’s Constitution: A Biography,” the final enabling clause — “Congress shall have power to make all appropriate laws” furthering this aim — was selected to echo specific Supreme Court rulings deferring to “appropriate” Congressional legislation. Amar:

And — here is the key point –the American people ratified the Fourteenth Amendment, with evident understanding of its, and also the Thirteenth’s, language authorizing “appropriate” federal legislation.  Knowing full well that Congress believed that this language authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality — and having seen with their own eyes that Congress had already acted on a similar belief in connection with the Thirteenth Amendment — Americans said yes.  We do.

Or so they believed.

“A vain and idle enactment”
To return to Bruckart’s remarks, I think one point to remember about judicial activism is that sometimes it’s needed simply to undo prior such activism.

The main example, to me, is in how the Fourteenth Amendment was bled nearly dry shortly after its ratification by one regrettable Supreme Court ruling — In re Slaughter-House Cases (1873; text)  — and one manifestly unjust one, United States v. Cruikshank (1875; text), a ruling rivaled in infamy by Dred Scott, Korematsu and few others.

I’ve been reading about the Reconstruction and post-Reconstruction eras, and trying to figure out where they almost literally ‘went South,’ at almost every opportunity since reading David Blight’s “Race and Reunion” earlier this year. These two rulings — and the mass killings the latter one ratified — seem to be a key to everything that happened after.  Two books I’ve found recounting the story in detail are Age of Betrayal, by Jack Beatty, and particularly The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction, by Charles Lane, and I rely on them in the following.*

“Erected to the memory of
the heroes … who fell in the
Colfax Riot fighting for
white supremacy”

The Colfax Massacre occurred in Colfax, Louisiana on April 13 (Easter Day) in 1873, when armed whites marched on a courthouse held by supporters of a Republican sheriff.  The white mob surrounded, besieged, and set fire to the courthouse, shot many surrendering black defenders one by one as they fled the flames, and killed yet more in the surrounding countryside.  At least sixty black men died; a Louisiana state historical marker calls the event a “riot” and puts the death toll at 150.  A commemorative marker was actually erected by the white community to the memory of the killers — and still stands there today.

At first, the efforts of a remarkable local U.S. attorney, James Roswell Beckwith, succeeded in bringing about the capture of several ringleaders of the massacre, including one William Cruikshank.

Then came the 1873 Slaughter-House ruling.  In that case, New Orleans butchers had brought suit against the State of Louisiana — now featuring Republican, black legislators — which had taken steps to protect the city’s water supply by forcing the butchers to operate downstream of the system’s intake valves.  Their case was taken up by John Campbell, a former Supreme Court Justice  –and an ex-Confederate still eager to harass Republican, Northern racial equalizers whenever possible.  His argument was ingenious, and nearly won the case: Campbell held that the Louisiana statute was in violation of the Fourteenth Amendment because it infringed on the “privileges and immunities” of the regulated butchers — those being to carry on their trade despite legislation passed by their inferiors.

By a 5-4 vote, the Court held for the State of Louisiana, saying the true purpose of the amendment was not to engage in unwarranted supervision of state legislatures, but to guarantee the privileges of citizenship to newly enfranchised black Americans.

But Campbell had won a major victory all the same.  He had purposely and necessarily exaggerated the scope of the Fourteenth Amendment’s protections well past the Bill of Rights to include “the personal and civil rights which usage, tradition, the habits of society, written law, and the common sentiments of people have recognized as forming the basis of institutions of this country”, i.e., unregulated commerce as the butchers had practiced it — and, though unspoken in this case, the white supremacy that all too many whites in Lousiana believed to be their privilege as well.  Chief Justice Samuel Miller felt a need to parry this argument by illustrating how far the 14th Amendment didn’t go.  And unfortunately, he got it wrong.

First, Miller severely (and unnecessarily) limited the scope of the Fourteenth Amendment’s “privileges and immunities” by wrongly distinguishing between allegedly fundamental state citizenship and allegedly superimposed federal citizenship.**  Second, Miller’s opinion held that the 14th Amendment only protected relatively trivial privileges of federal citizenship from state abridgement: those positive rights mentioned within in the Constitution such as the right to travel between states, seek the protection of a U.S. embassy when abroad, and other privileges of little practical interest to an ex-slave in Louisiana.  The rest were still up to the respective states to preserve equally to all their citizens.  Dissenting Justice Stephen Field wrote that if Miller’s view were the correct one, the Fourteenth Amendment was “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” ***

The Great Betrayal: Cruikshank
But Miller’s view had prevailed.  And the trouble was that while the Fourteenth Amendment indeed had little bearing on where to place a slaughterhouse, it had — or had once had — a great deal of bearing on how to keep white supremacists from murdering blacks in the post-Civil War South.  Lane:

Clever Democratic lawyers in New Orleans quickly recognized Miller’s opinion as a potential silver lining for them in Campbell’s defeat…the Enforcement Act might have been dealt a serious blow.  Miller had not only emptied out the Fourteenth Amendment’s ‘privileges or immunities’ clause, he had declared the primacy of state citizenship over national citizenship.

The 1870 Enforcement Act, whose more common name – the Ku Klux Klan Act — described its target succinctly, was, by design, the law that a federal prosecutor could use to prosecute violent white supremacists in Louisiana; it was widely and rightly considered to have been made possible by the Fourteenth Amendment.   Beckwith charged Cruikshank and seven of his fellow murderers with violating Section 6 of the Act, by “combining and conspiring” to deprive U.S. citizens of numerous civil rights, and of killing a man while doing so under Section 7 of the Act.  The first trial ended with a hung jury, but in a second trial Beckwith succeeded in convicting Cruikshank and two others — not of the Section 7 murder, not even a more carefully selected New Orleans jury could agree on that — but of the Section 6 conspiracy.

This is what an activist judge
looks like: Assoc. Supreme Court
Justice Joseph P. Bradley, in office
from 1870 to 1892.

And that is where Associate Supreme Court Justice Joseph P. Bradley intervened. Bradley, who had also dissented from the Slaughter-House verdict, joined the retrial in his capacity as a Circuit Court judge. Bradley first opened the door to a challenge of the constitutionality of the Enforcement Act –and then, on appeal, invalidated all eight charges as being unauthorized by any statute properly comporting with his newly narrowed, “Slaughter-House‘d” view of the Fourteenth Amendment.

Slaughter-House had already forced U.S. Attorney Beckwith to limit the specific rights the massacring whites had violated to the legal straitjacket prescribed by Miller’s ruling.  But it would not prove to be enough.  Bradley’s most far-reaching — even adventurous — ruling was that the Fourteenth Amendment was not only limited to protecting the (allegedly) separate, superimposed rights of federal citizenship, but merely empowered Congress to make laws regulating state government actions provably done with racist intent.  If so, and as Section 6 of the “Ku Klux Klan Act” did not confine itself to such cases of discrimination, that statute was unconstitutional.  William Woods, the judge who had actually been presiding at the trial (and who had made a contrary judgment in a similar prior case, U.S. v. Hall)  disagreed with Bradley’s rulings, and the split decision sent the matter to the Supreme Court.

A new Chief Justice there, Morrison Waite, was nominally responsible for the decision upholding Bradley’s Circuit Court ruling.  But he was new to the court, and Bradley — not legally required to recuse himself from the case — all but dictated the court’s upside down interpretation of the Fourteenth Amendment and its relation to the case at hand:

No rights can be acquired under the constitution or laws of the United States, except such as the government of the United States has the authority to grant or secure.  All that cannot be so granted or secured are left under the protection of the States.

And — little surprise remained — all counts of Beckwith’s indictment were therefore invalid.  Had the blacks of Colfax Courthouse gathered there to petition the federal government for redress of grievances, Beckwith might have had a case, Waite argued; he did not go on to add that they had instead merely gathered there in a fight for their lives.  Regarding Count 3 – conspiracy to deprive black Americans at Colfax of their lives — Waite wrote,

The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.

On Count 4, conspiracy of the accused to deprive their victims of equal treatment under the law, and again on Count 6, depriving victims of their voting rights, Waite wrote that, in these charges Beckwith had brought,

[t]here is no allegation that this was done because of the race or color of the persons conspired against. [...]  …it does not appear that it was [the accused’s] intent to interfere with any right granted or secured by the Constitution or laws of the United States. We may suspect that race was the cause of the hostility, but it is not so averred.

Race was in fact named as a motive in Count 5– conspiracy to “hinder and prevent the parties in their respective free exercise and enjoyment of the rights, privileges, immunities, and protection” under U.S. and Lousiana law.  But here Waite completed the triumph of Cruikshank and his fellow murderers.  The charge was too vague and general — despite echoing the Enforcement Act, which penalized those who would “injure, oppress, threaten or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States…” Bradley’s move to quash the Ku Klux Klan Act itself was not upheld, but with hurdles this high to securing a conviction, it hardly needed to be.

Cruikshank and his accomplices, already free on bond, were now free in fact.  As a bitter President Grant put it in an 1875 address to the Senate:

Fierce denunciations ring through the country about office-holding and election matters in Louisiana, while every one of the Colfax miscreants goes unwhipped of justice, and no way can be found in this boasted land of civilization and Christianity to punish the perpetrators of this bloody and monstrous crime.

Those rulings and the political acquiescence to them were the direct defeats enabling the resurgency of a white supremacist and frankly terrorist South. They made federal action against a mob like Cruikshank’s or more organized domestic terror groups all but impossible.  They made enforcement of black Americans’ rights a matter of state legislative and executive choice, rather than a federal imperative,  made conviction contingent on a (usually white) jury deciding that race was a motivating factor.  Good luck with *that* in the embittered, revanchist South of the 1870s — or any time within the next many decades.

Cruikshank, especially, signaled an “open season” on the black citizenry of the South, and it and the Colfax Massacre that led to it are two of the blackest marks of any on this country’s history. In the harm they did, and the history they derailed, Chief Justice Morrison Waite, his puppetmaster Bradley, and the Justices like Stephen Field who were persuaded to join their opinion may be fairly ranked alongside Booth, Oswald, Sirhan and Ray.

So what
What bearing do rulings from a bygone era have on our understanding of ourselves and our Constitution today?  Several things, I think.

First, they’re yet another part of a specific, tragic American history about how quickly the promise of the Emancipation Proclamation, winning the Civil War, and passing the Reconstruction Amendments could evaporate.  The ongoing disadvantages of black America can seem an inexplicable riddle to some: wasn’t that all taken care of once upon a time?  Isn’t what’s left “their fault”?  No, not at all, and even this, even lynchings, even Jim Crow are just the tip of an iceberg of racism — both institutional and noninstitutional — that  lasted well into the 20th century …and beyond. More on that, perhaps, in future posts.

Second, the sequence of events is instructive and almost classic: call it the ‘non-enforceability two step,’ and its relevance to present-day cases ranging from no-knock to torture cases is perhaps more clear.  The idea is that when a right is unwelcome, one of the simplest ways to deny the right is to piously affirm that you believe in it — while actually doing everything you can to make it all but unenforceable.  One of the simplest ways is to say that the right exists, but that there’s no authority for the federal government to enforce that right — good luck! Another one is to retreat behind the smokescreen of mens rea — the (easily deniable) state of mind of the rights-ignoring actor, whether police force, armed mob, or thug in a suit at the Office of Legal Counsel.

Between Waite and Bradley, both cases were covered, and (it seems to me) Fourteenth Amendment protections of Bill of Rights were first effectively denied, and then laboriously, grudgingly “incorporated” for black Americans (and everyone else) in a process that took unnecessary decades to complete.  Meanwhile the same Amendment was pruned and trained like a kind of legal bansai tree into a reshaped, stunted version of itself as all-purpose shield for corporate personhood.

Third, the rulings are still cited today.  In 1994, Cruikshank was cited in striking down the Violence Against Women Act, with Chief Justice Rehnquist citing the “time honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action.” Yet the amendment’s very terms also require each state not to deny to any person within its jurisdiction the equal protection of the laws; one might argue that until women are raped no more frequently than men, federal intervention is justifiable.  Certainly a pattern of state impotence at the time of the Colfax Massacre could have and should have been adduced in the Cruikshank case —  and malign neglect or intent could easily have been established in later decades.

Finally, the story puts in context certain frequently heard whines on the right about “judicial activism” — and on their habit of railing against the idea of a “living Constitution” when it suits them, and maintaining Olympian silence when it doesn’t.   As I argued in the discussion following Patrick’s post, that the plain meaning and original intent of the 14th Amendment could be ignored for so long is an interesting, if negative demonstration of the idea that the Constitution is a living document: if the wrong people — whether out of stupidity or out of malice — get a hold of it, it can be killed or at least k.o.’ed for decades.  Whether merely stupid and pedantic (like Miller) or actively malicious (like Bradley), such jurists are often the original activist judges, by bending the Constitution as it is experienced and enforced — i.e., how it is lived — towards a new, undesirable, and unwarranted direction.  It can take other activist judges years and decades to undo such handiwork and revive even plain text, original intent constitutional understandings.

Unfortunately, we may be looking at just such long years and decades ahead: Citizens United has made a mockery of our elections, the Office of Legal Counsel — under both Bush and Obama — has done the same with torture and accountability for it, executive power looks poised to grow yet further, habeas corpus looks poised to become as malleable as even a moderately clever government lawyer can make it.  Meanwhile our latest Supreme Court justice appears to be on the verge of recusing herself from decisions having to do with any of these concerns.

So if a progressive ever gets a chance — I won’t say another chance — to appoint a Supreme Court judge or three, I hope we’ll say you’re absolutely right we need some activist judges — to revive a living Constitution your activist judges have rendered comatose and irrelevant.  It’s happened before.  It’s happening again.


EDITS 10/2: “Third, the rulings are still cited today” paragraph added.  10/3: monument inscription corrected.
* Particularly, for Lane’s “The Day Freedom Died”, chapters 6, “Black-Letter Law,” 9, “A Justice’s Judgment,” and 11, “The Court Speaks” ; and for Beatty’s “The Age of Betrayal,” chapter 5, “The Inverted Constitution.”  See also other books, such as “Reconstruction” and “The Story of American Freedom”, both by Eric Foner; the latter two discuss the turn towards “liberty of contract” as the initial meaning of the Fourteenth Amendment as developed by the late 19th century Supreme Court, as does much of Beatty’s book.
** Both the history and current understanding of the Fourteenth Amendment indicate that it does the opposite, purposely making federal citizenship fundamental and state citizenship incidental.
*** Bradley’s Slaughter-House dissent concurred with Field’s, adding that he believed the Louisiana ordinance to be unreasonable because granting only the chartered company the right to build and operate the new slaughterhouse was “one of those arbitrary and unjust laws made on behalf of a few scheming individuals, by which some of the Southern States have, within the past few years, been so deplorably oppressed and impoverished.”

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